Sherbin must review exhibits in regard to ice cream parlor permit
Elaine Blaisdell Cumberland Times-News
OAKLAND — Judge Jim Sherbin will review exhibits given to him regarding the mini-marina at Lakeside Creamery Monday and make a decision on the matter by June 1.
A hearing on the declaratory judgment regarding amendments to the Deep Creek Watershed Zoning ordinance and the issuing of a permit to business owner Bill Meagher for the mini-marina and an administrative appeal of the Board of Zoning Appeals decision to grant Meagher the permit were held in Garrett County Circuit Court.
Meagher’s property did not meet the minimum total lot or land area per use of 10,000 square feet in the ordinance and instead a permit was based on a minimum land area of 6,000 square feet, according to Greg Skidmore of Skidmore, Alderson and Duncan of Oakland, who is representing local marinas. Skidmore requested that Meagher repeat the zoning process.
“Zoning should be transparent, open, fair and shouldn’t be questioned after the fact,” said Skidmore. “Meagher is the reason the zoning amendment was initiated,” he added.
On June 5, 2012, the Board of County Commissioners voted to make amendments to the ordinance to allow Meagher to have a marina that doesn’t offer the services associated with it. The amendments to the ordinance contained a notation that the minimum land are remain the same as currently specified at 10,000 square feet, according to a hearing memorandum provided by Skidmore.
Skidmore also noted that the property was .9 acres and didn’t meet the one acre minimum total lot or land area per use in the ordinance. County Attorney Gorman Getty III indicated there is a misunderstanding about the square footage required for the permit. A 1993 amendment to the ordinance established a 6,000 square foot requirement for retail and service business situated in shopping centers or neighborhood convenience centers.
Meagher’s property is classified multiple use and he has the potential to have six businesses because of the nature of the zoning classification, according to Getty. Skidmore also noted that the permit was issued by the Board of Zoning Appeals on June 11 before the findings of fact were issued.
“The June 28, 2012, findings of fact even ignored that the permit had already been issued to the Meagher/Lakeside by the administrator on June 11, 2012, based on a minimum land area of 6,000 square feet,” states the hearing memorandum. “Such a disclosure was clearly required by the ordinance and Maryland law so as to make the amendment process fair and reasonable.”
The county commissioners are required to make a findings of fact before enacting any amendment to the ordinance. The director of the board of zoning appeals indicated that the findings of fact were not fully written, signed and published until after the permit was issued, according to Skidmore.
The director also citied ambiguous language in the ordinance relating to the findings of fact. In order to clear up ambiguous language in the ordinance, the commissioners voted in January to rectify a conflict in ordinance so that it was consistent with Land Use Article 66B.
Skidmore also noted that the findings of fact didn’t satisfy the change/mistake requirement of the ordinance, which requires that if no mistakes were made in the zoning ordinance that an amendment be made only if the character of the neighborhood was changed to an extent which justifies the amendatory action.
Getty argued that the zoning amendment wasn’t made to address specific piece of property but all property and that there couldn’t be a change and mistake. Findings of fact were made and the change and mistake doesn’t apply, said Getty.
Meagher planned to offer 12 personal watercrafts and four pontoon boats as rentals as well as offer guided tours. He would use existing local marinas for related services.
Contact Elaine Blaisdell at eblaisdell@times-news.com.
